The Supreme Court has found in favour of a couple’s claim for €250 (around £220) compensation for flights cancelled after the pilot fell ill, finding the reason for the cancellation did not amount to an ‘extraordinary circumstance’.

In Lipton and another v BA Cityflyer Ltd the court heard that Mr and Mrs Lipton put in a claim for compensation over the cancellation of their BA Cityflyer flight to Milan. Cityflyer refused to pay on the ground that the pilot falling ill was an extraordinary circumstance under Regulation 261, the EU flight compensation regulation.

The Liptons’ claim was dismissed by a deputy district judge at Portsmouth County Court, on appeal by a circuit judge at Winchester County Court but upheld by the Court of Appeal. Cityflyer appealed to the Supreme Court.

In lead judgment today, Lord Sales and Lady Rose, with whom Lady Simler agreed, acknowledged the ‘all too familiar tale of frustration and annoyance’. 

Cityflyer’s two grounds of appeal before the Supreme Court asked what is meant by ‘extraordinary circumstances’ and whether the pilot’s illness counted as such. The second ground asks what effect, if any, Brexit had on the Lipton’s ability to recover compensation under Regulation 261 while the UK was still an EU member state.

Ruling for the couple, the judges found that the Court of Appeal fell into error when holding that the amended version of Regulation 261 and the Liptons’ claim is part of ‘retained EU law’. It said: ‘This is contrary to a basic principle of the rule of law which parliament must be taken to respect, according to which it is the law in place at the time the material events occur which applies, rather than some different version introduced at a later date.

‘To analyse the position as the Court of Appeal did would produce strange results and would undermine the important value of finality in litigation.’

Considering the meaning of ‘extraordinary’ and dismissing the appeal, the judgment states: ‘The non-attendance of the captain due to illness was an inherent part of Cityflyer’s activity and operations as an air carrier and could in no way be categorised as extraordinary.’

Lord Burrows gave a concurring judgment as did Lord Lloyd-Jones though the latter judge disagreed with the reasoning about accrued EU law rights. He said: ‘The essential point of difference between us is whether the legislative provisions on retained EU law have only prospective effect. I agree, however, with the majority that this difference between us is not decisive in these proceedings and the various views expressed are therefore obiter.’


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